Eye in the sky

A car crash in rural Hamilton. A search for a missing elderly woman. The 2021 CFL Grey Cup. A protest during a visit from Prime Minister Justin Trudeau.

While vastly different events and incidents, they have one thing in common: A drone operated by the Hamilton Police Service (HPS) was buzzing around in the sky above and watching.

The technology is increasingly being employed by police services across Canada, including in Charlottetown, Fredericton, Toronto, Ottawa, Vancouver and Winnipeg.

Hamilton police began using drones in 2021, but the HPS has released little information about their use or the guidelines for operating them.

Through a Freedom of Information request, CBC Hamilton obtained the HPSs privacy impact assessment (PIA) on drones. The document is needed to show how the technology may impact peoples privacy and ensure the service is in compliance with privacy laws.

CBC has also obtained drone flight logs, which reveal how often the HPS uses the technology and more details on why.

However, the documents reveal that in many cases, the reasoning behind why police use them is unclear.

They also show the HPS didnt follow part of its own PIA for two years, by not adding a webpage to its site about the drone program. It did so recently, after receiving questions from CBC Hamilton about its absence.

The Canadian Civil Liberties Association and three privacy experts reviewed the HPS drone PIA. They praised police for doing the assessment, but also said it has gaps.

It all sounds very orderly, and considerate and thought through, but there are red flags, said Brenda McPhail, CCLAs director of the privacy, technology and surveillance program.

Privacy researchers interviewed by CBC Hamilton say the PIA doesnt address using controversial technology like facial recognition to analyze drone images or arming the drones which at least one U.S. tech firm has recently explored and that gap leaves room to explore those possibilities.

They also say use of drones may impact the privacy of bystanders and community members, and discourage protesters.

CBC repeatedly requested an interview with the HPS over several weeks, but none was ever confirmed.

In a March 15 email, Const. Indy Bharaj, media relations officer with the HPS, wrote drones enhance public safety, adding that police and fire services around the world use the technology.

There are mechanisms in place for any concerns to be brought forward, Bharaj wrote.

In 2020, the HPSs police chief at the time, Eric Girt, told the police services board that the service should get drones to enhance officers response to large-scale events such as McMasters Fake Homecoming, protests and demonstrations at city hall, and Supercrawl, the annual downtown music and arts street festival.

Hamilton police used drones at least once in 2021, at the Grey Cup game in December, according to an HPS tweet.

In total, Bharaj said, the HPS has spent $30,000 for four drones, including two bought by police in 2022.

The PIA states drones have multiple uses, including:

• Collecting pictures and measurements from car crashes and crime scenes.
• Helping with ground searches, search and rescue, and finding missing people.
• Providing a tactical aerial perspective to monitor protests, mass gatherings, riots, barricaded people, hostage situations and high-risk search warrants.
• Identifying suspects.
• Other uses, such as for fires or explosions, flight testing, training and judicial authorization.

Flight logs obtained by CBC Hamilton show the HPS deployed drones 43 times from January 2022 to the end of January 2023.

Of those, 20 drone deployments were listed as collision reconstruction, six were filed under search and rescue, and 17 were filed under other, defined as anything besides collision reconstruction, and search and rescue.

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This other category raises some concerns. It could just be anything, said Natasha Tusikov, a former analyst with Criminal Intelligence Service Canada and researcher with the RCMP. Id like to see some greater specificity.

The flight logs also showed the HPS used drones more in January 2023 than in any other month over the previous year, with eight deployments. Seven of those were categorized as other.

Most flights in 2022 and January 2023 lasted a few minutes or a few hours, but one flight went on for almost nine hours.

While the flight logs dont specify locations or the objective of missions categorized as other, police tweets indicate drones were used in a range of events, including:

• Numerous car crashes.
• Investigating the scene of a shootout at the Hamilton Cemetery between officers and a gunman who killed a Toronto police officer and a Mississauga, Ont., man.
• A fake homecoming street party by McMaster students near the school.
• The search for missing 80-year-old Shirley Love.
• Protests in downtown Hamilton during Trudeaus cabinet retreat.

The HPSs drones dont have audio capabilities, according to the police service.

The PIA states drones have a zoom camera.

They also have an infrared camera that measures light at greater wavelengths than the human eye is capable of seeing.

The PIA says infrared pictures are grainy and give only a general sense of the size of the object.

Infrared cant determine someones gender, age or defining physical characteristics.

The drone program also uses software to stitch images together to create 3D renderings of scenes, similar to Google Street View.

The PIA states the length of time drone records are kept depends on why the drones were used.

For example, records related to a crash could be kept for over five years. Any records unnecessary for investigations or training will be deleted, according to the PIA.

The PIA said the HPS notifies the public, through social media and signage, of when drones are deployed.

The police service has alerted the public via Twitter about deploying drones at least 17 times since Dec. 12, 2021, according to CBC Hamiltons tracking of the tweets, despite using drones 43 times in one year.

The HPS doesnt appear to use other social media or the services website for these notifications.

Bharaj said the PIA provides exemptions for when the HPS doesnt need to notify the public. They include emergent situations or when notifying people would jeopardize the investigation.

Tusikov said she isnt sure the notification is adequate, especially when its [involving] peaceful, public gatherings.

The training that drone operators receive about privacy is one page long, and says police will remove and try to avoid capturing personal information unrelated to the flights objective.

Its pretty short, Tusikov, an assistant professor in York Universitys criminology department, said of the privacy portion of the training.

The training, along with the PIA, also says all flight information and other details about drone use would be available on the HPSs website. An HPS webpage on drones appeared in late March, after questions from CBC, with basic information about the drone program, but there was nothing about specific flights.

Christopher Schneider, a sociology professor at Manitobas Brandon University whose research examines policing and technology, said introducing drones is a sign of the militarization of policing.

He said one alarming gap in the PIA is how theres no mention of facial recognition software.

Saying nothing about it leaves it open, Schneider said, pointing to how Hamilton police tested a controversial facial recognition software in 2020.

If its not discussed, and if no one brings it up and they do it, can they get in trouble for it?

McPhail and others echoed his concerns.

It needs to be carefully balanced with individual privacy rights, Schneider said.

Asked if the HPS uses facial recognition or plans to use it, Bharaj said no, not at this time.

He added police dont use biometric information on drones or drone records.

When identifying people, Bharaj said, the HPS uses techniques similar to any other digital imagery, like security camera footage.

In early 2022, Const. Krista-Lee Ernst, an HPS media relations officer, said in an email that when the police service used drones at the Grey Cup and the NHL Heritage Classic at Tim Hortons Field in March, it was to have a birds-eye view of the stadium for when officers have to control traffic at the start and end of the games. Drones were not used to identify people, she added.

Schneider said another detail that isnt mentioned in the PIA is if theres a possibility for the drones to be armed with weapons.

This sounds like the stuff of terrifying science fiction, but its very real and its been discussed.

Last summer, Axon Enterprise, a U.S.-based company formerly known as Taser International, announced it had started developing a drone armed with a Taser as part of a plan to stop mass shootings.

Rick Smith, Axons chief executive officer and founder, said at the time that using remotely operated non-lethal drones capable of incapacitating an active shooter in less than 60 seconds would be a more effective, immediate, humane and ethical option to protect innocent people.

The company immediately faced backlash, and three days after announcing its plans, Axon said it was pausing the project.

Schneider said the HPS not mentioning armed drones in the PIA is very problematic.

Something should have been stated in here that these drones, under no circumstances whatsoever, will be used for the purposes of arming them and deploying them as weaponry.

Asked if the HPS is considering arming drones, Bharaj again said not at this time.

There are also serious concerns from experts about how this will impact Canadian charter rights to protest.

McPhail said the HPS should have conducted a public consultation before it started using drones, particularly with marginalized communities.

She and all the privacy interests interviewed said drones may have a chilling effect on protests and people standing up to the police service because they may feel theyre being watched.

WATCH | Crowd protests Trudeaus policies during cabinet retreat in Hamilton:

Schneider said police in the U.S. used drones to surveil protests after the high-profile murder of George Floyd, who was killed in May 2020 by Minneapolis police officer Derek Chauvin.

It is the police who get to decide when and how a protest turns into a riot and allows the police to respond in ways they see fit, Schneider said, adding he believes the PIA doesnt say enough about charter rights.

Hamilton police tweeted how it was using drones to monitor protesters during Trudeaus visit to the city in late January.

Bharaj said HPS drone use follows guidelines that are in compliance with legislation as outlined in the PIA.

Karen Louise Smith, an assistant professor at Brock University in St. Catharines who researches privacy, also said that in the case of a protest near a neighbourhood, she wonders how police could effectively use drones without encroaching on the privacy of bystanders and peering into their homes.

She and Tusikov said there could be tougher laws on drone use.

She pointed to legislation in U.S. states such as Vermont that restrict police use of the aerial technology.

The Canadian government adopted rules in 2019 that say drones must stay within a persons eyesight, unless they get an exemption. The rules have faced some pushback from drone users and police.

Law enforcement has a very long, very troubled history of abusing technologies, Tusikov said.

Yes, there is the argument that we need some kind of effective law enforcement operation. What we also need in a democracy is accountability.